Reyes v Al-Malki

The Supreme
Court has unanimously found that a former diplomat would not be entitled to
diplomatic immunity in relation a claim of human trafficking brought by a
domestic worker because the worker’s employment and alleged treatment would not
constitute acts performed in the course of the diplomat’s official functions
(within the meaning of Articles 31(1)(c) and 39(2) of the 1961 Vienna
Convention on Diplomatic Relations).

The Court unanimously
held that in such circumstances the diplomat would have lost any immunity from the
moment his posting at the Saudi Embassy in London came to an end and it did not
matter that the claim was originally issued at a time when he was a serving
diplomatic agent in the UK.

A majority
of the Court (3:2) also indicated that it saw substance in the argument that
the employment of a domestic worker, where the conditions of her employment constituted
human trafficking, amounted to a “commercial
activity exercised by the diplomatic agent in the receiving State outside his
official functions” (under Article 31(1)(c) of the 1961 Convention). It
would follow from this argument that immunity should not stop a trafficked
worker bringing a claim against her diplomat employer even while the diplomat remains
in post. In circumstances where the Court had found in favour of the claimant, Ms
Reyes, on the issue of loss of immunity, it did not determine this issue.

The Court
also unanimously rejected the diplomat’s contention that he had not been
validly served with proceedings. The Court ruled that a claim form could be
served by ordinary post to a diplomat’s residence and that this would not
breach Articles 22 and 30 of the 1961 Convention (which provide that a
diplomat’s residence is inviolable).